The European Commission has confirmed that it is concerned as to the legality of the laws that give faith schools sweeping powers to discriminate in their employment of teachers on religious grounds in England and Wales. Responding to a formal complaint made by the British Humanist Association, itself a founding member of the Accord Coalition, the Commission stated that UK law ‘raises questions’ about its conformity with legalisation of the European Union, and that it will be contacting the UK government for further clarification.
Voluntary Controlled, Foundation and some Academy faith schools (comprising of just over a third of the state funded faith schools in England and Wales) can demand that one fifth of their teachers be of the school’s faith, including teachers who will not teach Religious Education or have any pastoral duties. Meanwhile, all other state funded faith schools (Voluntary Aided and all other Academy faith schools), and all independent faith schools, can apply this strict religious test to all their teacher posts. This latter group includes all Catholic, Jewish, Muslim and Sikh faith schools.
Once employed, preference can be shown to these teachers in terms of promotion and remuneration on religious grounds, while they can be reprimanded or even dismissed for conduct that the school itself deems to go against its own religious beliefs. In the case of one Catholic school this included a head teacher who was forced to resign because he wanted to find happiness in his private life and remarry after a divorce.
Chair of the Accord Coalition, Rabbi Dr Jonathan Romain MBE, said ‘Accord opposes all religious discrimination in the employment and recruitment of teachers on a matter of principle, as religious discrimination is discrimination, and also as teachers have a right to a private life and can still uphold a religious or philosophical ethos of a school without the need of being discriminated against.
‘However, there is a compelling case that the current law in England and Wales does not even comply with existing EU law. This is because the law gives faith schools blanket freedoms to discriminate against teachers, without any requirement on schools to show that such different treatment is a genuine, legitimate and justified occupational requirement.
‘When it comes to employing teachers in faith schools the law currently completely undermines the idea of fair employment rules. We are therefore delighted by the Commission’s decision to investigate UK law further, and look forward to the outcome of their work’.
Notes
The European Commission’s response to the British Humanist Association can be viewed at: http://www.humanism.org.uk/_uploads/documents/european-commission-response-to-bha-complaint-on-employment-in-faith-schools.pdf
The current situation under UK law
Article 4 of Directive 2000/78/EC on employment equality allows organisations in the EU with an ethos based on religion or belief, such as schools with a religious character, to treat persons differently in recruitment and employment on the grounds of religion or belief where there is ‘a genuine, legitimate and justified occupational requirement’.
However, section 58 and 60 of the amended School Standards and Framework Act 1998 allows Voluntary Controlled and Foundation faith schools to apply strict religious restrictions on one fifth of their teacher posts. Meanwhile, Voluntary Aided and most Academy faith schools (which comprise a majority of the state funded faith schools in England and Wales) can apply these restrictions for all teacher posts.
It should be remembered that these special powers over staff, which are far greater than enjoyed by other religious organisations in society, are given to schools that are almost entirely funded by the state, and in the case of Academy, Voluntary Controlled and Foundation faith schools, entirely state funded.
Broader concern about UK law
The Joint Committee on Human Rights of the UK Parliament wrote in their first report (p96 Legislative Scrutiny: Equality Bill. Twenty-sixth Report of Session 2008-09) on the then Equality Bill, published in October 2009, that:
‘We consider that substantial grounds exist for doubting whether sections 58-60 of the School Standards and Framework Act 1998 (SSFA) as currently framed are compatible with the requirements of Article 4(2) of the Framework Equality Directive 2000/78/EC. We also consider that the provisions of section 60(5) SSFA permit Voluntary Controlled and Voluntary Aided Schools to impose wide-ranging requirements upon employees to adhere to religious doctrine in their lifestyles and personal relationships which may go beyond what is permitted under Article 4(2).’
